Secondary Publication Obligation
In an order published today, the Second Senate of the Federal Constitutional Court held that a provision regarding a secondary publication obligation in § 44(6) of the Act on Higher Education Institutions in Baden-Württemberg (Gesetz über die Hochschulen in Baden-Württemberg – LHG BW, hereinafter: the Act) is incompatible with the Basic Law and void.
§ 44(6) of the Act authorises institutions of higher education to enact bylaws which obligate researchers at those institutions to exercise their right to non-commercial secondary publication of academic papers written during the fulfilment of their employment obligations. In proceedings challenging bylaws enacted pursuant to this provision, the Higher Administrative Court of the Land Baden-Württemberg referred to the Federal Constitutional Court the question whether § 44(6) of the Act violated Art. 71 and Art. 73(1) no. 9 of the Basic Law.
The Second Senate has answered this question in the affirmative. The Land Baden-Württemberg lacks the necessary legislative competence to enact § 44(6) of the Act because it is legislation in the area of copyright and thus falls within the exclusive legislative competence held by the Federation pursuant to Art. 73(1) no. 9 of the Basic Law.
The decision was taken with 6:2 votes.
Facts of the case:
Since 1 January 2014, § 38(4) of the German Act on Copyright and Related Rights (Urheberrechtsgesetz – UrhG) provides for the so-called right to secondary publication for authors of academic papers resulting from research that is at least 50% publicly funded and published in a collection appearing at least twice a year. Pursuant to this provision, authors retain the right to make such papers in the accepted manuscript version publicly available for non-commercial purposes 12 months after the initial publication, even if they have granted the publisher or editor an exclusive right of use.
On 1 April 2014, through the enactment of the Third Act to Amend the Higher Education Act, Baden-Württemberg adopted the so-called secondary publication obligation in § 44(6) of the Act. The provision authorises institutions of higher education to enact bylaws which obligate researchers at those institutions to exercise their right to non-commercial secondary publication of academic papers written in the fulfilment of their employment obligations (first sentence), to enact exceptions from such obligation (second sentence) and to stipulate a specific repository to implement this obligation (third sentence).
The subject of the initial proceedings are bylaws of the University of Konstanz based on § 44(6) of the Act. The applicants in the initial proceedings challenged the bylaws before the Higher Administrative Court of the Land Baden-Württemberg, arguing that the Land did not have the legislative competence to enact such a rule because it concerns the area of copyright within the meaning of Art. 73(1) no. 9 of the Basic Law.
The Higher Administrative Court suspended the proceedings and referred the question whether § 44(6) of the Act in the version of the Third Act to Amend the Higher Education Act violated Art. 71 and Art. 73(1) no. 9 of the Basic Law to the Federal Constitutional Court.
Key considerations of the Senate:
I. The Land Baden-Württemberg lacks the necessary legislative competence to enact § 44(6) of the Act because it constitutes a rule in the area of copyright and thus falls within the exclusive legislative competence held by the Federation pursuant to Art. 73(1) no. 9 of the Basic Law.
1. The exclusive legislative competence of the Federation for industrial property rights, copyrights and publishing relates to legal matters for the protection of intellectual property. By allocating the legislative power for industrial property rights, copyrights and publishing, Art. 73(1) no. 9 of the Basic Law establishes the Federation’s legislative competence for the protection of intellectual property in regard to cultural – particularly literary, musical, and other artistic or scientific – creations, as well as for related intellectual property rights. Copyright encompasses all provisions which protect the creator’s intellectual and personal relationship to the work they created and in regard to the use of such work, including a guaranty of reasonable remuneration for the use of the work. Traditionally, this also includes, along with granting exploitation, duplication and distribution rights, protection of the creator’s moral rights to a work, including the right of publication. Ensuring the non-material interests of the creator in their work is a part of copyright which is not subordinate or accessorial to the protection of financial interests.
2. In view of the foregoing, § 44(6) of the Act is a law relating to copyright within the meaning of Art. 73(1) no. 9 of the Basic Law.
a) The attribution of legislative competence with regard to this authorisation to enact bylaws is based on the rules of the bylaws it authorises. The direct regulatory subject of the bylaws pursuant to § 44(6) of the Act is, according to the Act’s wording and legislative history, imposing an obligation on university research staff to exercise their secondary publication rights under § 38(4) of the Act on Copyright and Related Rights. According to this, the addressees of the rules established by the corresponding bylaws are required to exercise a right which is granted to them as authors of the papers in question. The exercise of this right is regulated. Those affected by the bylaws no longer have the right to determine whether, when, and – if the use of a repository is required – how to exercise the right to secondary publication. In this regard, their freedom of decision is revoked. As the scope of copyright also includes the non-material interests of the author in their work, the fact that § 44(6) of the Act only concerns ‘non-commercial’ secondary publication does not preclude it from falling within this category.
The statutory purpose and effect of § 44(6) of the Act also argue in favour of its classification as a copyright law. The obligation for authors to make a non-commercial secondary publication of their academic papers is intended, in the spirit of open access principles, to make it easier for researchers and others interested in scientific progress to access academic publications. § 44(6) of the Act shares with § 38(4) of the Act on Copyright and Related Rights the aim of open access to scientific information and dissemination of research and knowledge. While the federal law in § 38(4) of the Act on Copyright and Related Rights, as a law establishing contractual rights with regard to intellectual property, grants authors an inalienable right to secondary publication without obligating them to exercise such right, the freedom of decision granted by this provision is in principle revoked from the authors affected by § 44(6) of the Act through bylaws enacted on such basis. The authors are obliged to exercise their right to secondary publication. The restriction on the rights of authors also provides third parties who are granted access through the obligatory secondary publication the ability to use these publications.
Thus, according to its effect, § 44(6) of the Act constitutes a limitation on the affected authors’ copyright. This type of restriction of the powers of authors in the general interest has always belonged to the area of copyright.
b) The connection between § 44(6) of the Act and institutions of higher education or public service law, i.e. areas in which the Länder have legislative competence, does not yield a different result. The challenged provision’s character as a law relating to copyright, as demonstrated by its direct regulatory subject, objective statutory purpose and its primary effect is in no way altered by its connection to higher education or public service law.
That the addressees of the provision are limited to persons involved in higher education does not alter the fact that the affected persons are called on to exercise their legal rights to secondary publication which belong to them as authors of the relevant academic papers. They are obligated to exercise precisely this right. The decisive factor for the attribution of legislative competence is first and foremost this substantive regulatory content, which concerns issues that can be genuinely classified as copyright.
The significance of § 44(6) of the Act’s regulatory content, which is specifically directed at copyright, for the attribution of legislative competence is not reduced by the fact that the provision is linked to institutions of higher education, the academic system or to the process of scientific discovery, in that the legislative aim of the so-called secondary publication obligation is to ensure the reasonable dissemination of academic knowledge achieved through the Land’s higher education institutions. This is because this aim does not empower the Land to encroach on the exclusive legislative competences of the Federation, which include as part of the area of copyright the very right to enact restrictions on the rights of authors to their intellectual property in the interest of scientific research.
Nor does a legislative competence on the part of the Land follow from close integration of § 44(6) of the Act with other provisions in the Higher Education Act as a form of comprehensive legislation in higher education law or public service law. This is the case both with regard to § 44 of the Act itself as well as beyond this individual provision. In viewing the subsection authorising bylaws that is the subject of these proceedings in the context of the other subsections of § 44 of the Act, a close integration is out of the question. Beyond § 44 of the Act, it is not ascertainable that § 44(6) of the Act is closely interrelated with other provisions of the Act and therefore cannot be independently assessed with regard to competences.
II. § 44(6) of the Act is incompatible with Art. 71 and Art. 73(1) no. 9 of the Basic Law and therefore must be declared void.
The reasons for the unconstitutionality of § 44(6) of the Act in the version applicable to the initial proceedings in the original version of the Third Act to Amend the Higher Education Act of 1 April 2014 apply equally to the version of the provision from the Fourth Act to Amend the Higher Education Act of 17 December 2020 applicable until today, which is essentially alike in substance.